FCC Issues Revised Rules Restricting Telemarketing Calls

On June 11, 2012, the Federal Communications Commission (“FCC”) published its final revised rules for autodialed or prerecorded telemarketing calls (“Robocalls”) which modified the Telephone Consumer Protection Act of 1991 (“TCPA”)[1] as follows:

1. Prior Express Written Consent Required for Robocalls

Companies must obtain prior express written consent for all Robocalls to wireless numbers and residential lines unless the calls are covered by one of the exceptions described in Section 4 below. The FCC also specified that companies cannot use the “established business relationship” exemption to circumvent this new rule. Under the new revised rules, companies cannot place robocalls to consumers with whom they have an existing business relationship without consumers’ prior express written consent.

The FCC indicated that written consent obtained in compliance with the E-SIGN Act (including permission obtained via an email, website form, text message, telephone keypress or voice recording), satisfies this written consent requirement.

2. Permit Consumers to Opt-Out of Future Robocalls During a Robocall

Robocalls must contain an interactive, automated opt-out mechanism that is announced at the outset of the message and is available throughout the duration of the call. In addition, if a consumer invokes the opt-out mechanism, the caller must add the consumer’s number to the caller’s do-not-call list, and immediately disconnect the call. If a call could be answered by a consumer’s answering machine or voicemail service, the message must also include a toll-free number that allows the consumer to call back and directly connect to an opt-out mechanism.

3. Limitations on Abandoned Calls

During a single calling campaign[2] over a 30-day period, a telemarketer may abandon no more than three percent of calls answered by a person and must deliver a prerecorded identification message when abandoning a call.[3] If the single calling campaign exceeds a 30-day period, the abandonment rate must be calculated each successive 30-day period, or portion thereof, during which the campaign continues.

4. Exceptions

Robocalls made by health care-related entities that are governed by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) are exempt from these changes to the TCPA.

And, autodialed or prerecorded messages made for non-telemarketing, informational purposes, including without limitation the following, are exempt from the revised FCC rules: (a) calls by or on behalf of tax-exempt non-profit organizations; (b) calls for political purposes; and (c) calls for purely non-commercial, information purposes such as calls informing consumers of their bank account balances, fraudulent credit card activity, school closings and other emergency purposes.

5. Implementation

There is a 12-month implementation period for the requirement that telemarketers obtain consumer’s prior written consent before “robocalling” the customer.

There is a 90-day implementation period for the automated, interactive opt-out mechanism for telemarketing calls.

And, there is a 30-day implementation period for adoption of the revised abandoned call rule.

Each of these implementation periods commences on the date on which upon the Office of Management and Budget publishes the applicable rule in the Federal Register.

If you have any questions about these revised rules or how to comply with them, please contact Helen Christakos at: hchristakos@carr-mcclellan.com or 650-696-2545.

[1] See 47 U.S.C. § 227; 47 C.F.R. § 64.1200.

[2] The FCC adopted the Federal Trade Commission’s definition of “campaign” which means “the offer of the same good or service for the same seller.” See 2008 TSR, 73 Fed. Reg. at 51200.

[3] An outbound call is deemed “abandoned” if a person answers the phone and the caller does not connect the call to a sales representative within two seconds of the consumer’s completed greeting.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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